7 January 2010

What the U.S. could have celebrated on Public Domain Day (and what we can celebrate)

Copyright duration is always calculated relative to the calendar year, which means that every January 1st a new batch of works enters the public domain. We IP geeks mark the occasion by celebrating Public Domain Day (along with that other January 1st holiday). By entering the public domain third-party creators are now free to join the original author in disseminating, analyzing, selling, remixing, and doing all sorts of interesting things with the work; the work becomes part of our collective cultural identity.

… at least that’s what should happen. But as Ars Technica, Creative Commons, and public domain guru James Boyle all note, no published work in the United States will enter the public domain again for nearly another decade, thanks to recent copyright extensions. So while other countries are enjoying increased access to hundreds of works, we will still be waiting for the works of Robert Frost, George Gershwin, Cole Porter, and Aldous Huxley to come down from their 95 years in copyright. Assuming the work was published in compliance with the formalities the Copyright Act had at the time, no work published after 1923 will enter the public domain until 2018.

You can click those links above to see the sad news about what we can’t use freely thanks to our vastly overreaching copyright laws. I’m here to tell you some good news. In fact, a small class of works did find their way into the public domain this year in the U.S.. But don’t get too excited.

To understand what entered the public domain you need to know a little history. For over a century the law in the US recognized a “common-law” perpetual copyright for unpublished works. While U.S. copyright law kicked in and the duration clock began ticking whenever a work was published, the author forever maintained the exclusive right to publish their work first. When Congress revised the Copyright Act in the 1970s they sought to do away with this (as we were now adopting a new life-of-the-author-plus-some-years system for calculating duration), but didn’t want to immediately inject all these unpublished works into the public domain. So the 1976 act provided a compromise, encouraging holders of unpublished work to publish. That compromise is 17 U.S.C. § 303, which grants copyright protection until 2047 (!!) for any work not published when the 1976 Act went into effect (January 1, 1978), but published between that point and December 31, 2002. After that, the unpublished work would enter the public domain in the regular life-of-the-author-plus-fifty-years cycle (extended to life+70 years in the 1990s).

So, any work whose author died in 1940 and was either published after 2002 or never published, entered the public domain on January 1st. So go make some cool mashups, all you people out there holding onto unreleased drafts by F. Scott Fitzgerald, Emma Goldman, Leon Trotsky, Alfred Ploetz, Paul Klee, Nathanael West, or Philip Francis Nowlan. Happy Public Domain Day.